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By Bruce Buchanan, Siskind Susser
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has published a Technical Assistance letter (TAL) concerning the conflict between the requirements of E-Verify and Texas Executive Order RP-80, which was issued by Governor Rick Perry on December 3, 2014.
The specific issues raised in the TAL were:
1. Whether Texas contractors may disregard RP-80's requirement that state contractors use E-Verify for "all persons employed during the contract term to perform duties within Texas" when it conflicts with federal E-Verify rules, which require E-Verify only to be used for newly-hired employees?
2. Whether Texas state agencies are in violation of E-Verify by using E-Verify for "all current and prospective agency employees"?
3. Whether Texas contractors would violate the anti-discrimination provision of the INA if RP-80 was used by a nationwide employer "to root out” complaining employees by transferring them to Texas after winning a Texas project and running them through E-Verify?
Concerning the first question, OSC stated that U.S. Citizenship and Immigration Services (USCIS), the agency that administers the E-Verify program and issues guidance on proper E-Verify procedures, has advised employers in Texas that federal E-Verify requirements are in effect at all times.
As for the second question, OSC stated that employers using E-Verify for prospective employees are in violation of federal E-Verify rules. Furthermore, unless an employer is a federal contractor using FAR E-Verify, it would be in violation of federal E-Verify rules to use E-Verify for verification of current employees.
Concerning the third question, OSC stated that employers must not violate the anti-discrimination provision of the INA which prohibits discrimination on the basis of citizenship, immigration status, and national origin in the employment eligibility verification process. Examples of such discrimination are an employer rejecting valid Form I-9 documentation, demanding more or different Form I-9 documentation, or requesting specific Form I-9 documentation based on an employment-authorized individual's citizenship, immigration status, or national origin. Thus, according to OSC, an employer using RP-80 to assign an employee to work in Texas for the purpose of reverifying the employee's employment authorization may raise concerns that it is treating that employee differently in the employment eligibility verification process based on perceived citizenship status or national origin.
OSC’s TAL is solid advice related to following E-Verify rules. However, in doing so, Texas contractors and subcontractors with Texas state agencies will be in violation of RP-80. Hopefully, current Governor Greg Abbott will amend the Executive Order to be in compliance with federal E-Verify rules.
A copy of OSC’s technical assistance letter is available here.
Updated 04-20-2015 at 01:35 PM by BBuchanan
By Bruce Buchanan, Siskind Susser
On December 3, 2014, Governor Rick Perry of Texas signed Executive Order RP 80 requiring all agencies under the direction of the governor to use E-Verify to verify the employment eligibility of all current and prospective employees. The same order applies to all contractors and sub-contractors that have contracts for services with any agency under the direction of the governor.
One major problem with this executive order is the Department of Homeland Security (DHS) prohibits employers from using its E-Verify system to verify current employees unless the employer falls under FAR E-Verify rules for certain federal contractors. I would expect Governor Perry to re-issue this order removing the requirement for current employees, in much the same manner as Governor Rick Scott of Florida did four years ago.
This Executive Order is a change in position for Governor Perry, who once said E-Verify would not "make a hill of beans difference" in preventing undocumented immigrants from working. I wonder if this change of heart has to do with preparing for another Presidential campaign and appealing to the base of the Republican Party.